Why the Supreme Court Came Out Strong Against Arizona’s Voter Registration Law

The law, lawyers, and the court.
June 17 2013 7:10 PM

This Time, Scalia Doesn’t Want to See Your Papers

The Supreme Court declares Arizona’s voter registration law unconstitutional.

Tucson Police Officer Angel Ramirez arrests a man for trespassing May 29, 2010 in Tucson, Arizona.
Tucson Police Officer Angel Ramirez arrests a man for trespassing on May 29, 2010, in Tucson, Ariz.

Photo by Scott Olson/Getty Images

By a surprising 7 to 2 majority, the Supreme Court on Monday struck down a bristly little ballot initiative that Arizona passed in 2004, requiring everyone who registers to vote to prove his or her citizenship. Justice Antonin Scalia wrote the majority opinion, and he had everyone on board except Justice Clarence Thomas and Justice Samuel Alito. Voter ID laws, including this one about voter registration from Arizona, are all about partisan politics. They pit Republicans who say they’re worried about voter fraud against Democrats who want to make it easier, not harder, for people to vote. These state-driven initiatives are especially bad for minority voters, and the young, poor, or disabled—groups that tend to stay off the rolls in larger numbers when there are more hoops to jump through. 

And so it’s heartening to see seven justices join hands today. They stood behind a simple federal form for voter registration and tossed out Arizona’s more burdensome alternative.  In other words, they made it easier for people to vote and sided with federal over state power. At his next Federalist Society event, Scalia will have some explaining to do.

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In 1993 Congress passed the National Voter Registration Act, which created a federal form for voter registration. It’s pretty simple: To prove your citizenship, you just have to swear to it. Voters in Arizona, along with three other states, found this shockingly loosey-goosey. In part to combat voter fraud, they passed a ballot initiative in 2004 requiring someone who wanted to register to vote to provide a copy of a passport, birth certificate, driver’s license number (if the license verifies your citizenship), or other evidence of naturalization or membership in an Indian tribe.

It turns out that there have been only two cases since 2000 in Arizona in which non-citizens tried to cast votes. In other words, there’s almost no real voter fraud to fight. But that’s not what the Supreme Court focused on. The decision is all about what Congress meant when it instructed the states to “accept and use” the federal voter registration form created by the NVRA, and whether it had the power to boss Arizona around in the first place. The answer to the second question, Scalia says for the court, is yes. He begins where he must, with the Constitution:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators."

So the states get to make the rules, and then Congress gets to remake them. Scalia says this was the framers’ way of making sure that the states wouldn’t refuse to provide for elections to the U.S. House of Representatives.  Apparently “widespread vociferous opposition to the proposed Constitution” made this a live possibility back in the day. (Now, of course, we like to elect our own representatives to the House and wish that everyone else’s would stay home.)

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